Lawrence v. Carhart (Part 2)

Yesterday I proposed that Justice Kennedy’s opinions in Carhart v. Gonzales and Lawrence v. Texas might be compatible if (i) a substantial infringement of a protected liberty requires a rights-based or harm-based justification; (ii) a nonsubstantial infringement permits an expressive or symbolic justification; and (iii) a ban on D&X is a nonsubstantial infringement on the assumption that D&E is an equally safe alternative (as Congress found and Kennedy accepted). I then argued that because criminal punishment must be justified on rights-based or harm-based grounds a selective ban on D&X but not D&E can only be sustained if (iv) the killing of a fetus can be punished on rights-based grounds (for instance in the case of third-party feticide) but (v) women’s countervailing interests in privacy and equality nonetheless ground a protected liberty to obtain an abortion. Since on these assumptions a ban on D&X does not undermine women’s interests D&X can be prohibited and punished on rights-based grounds without infringing their protected liberty.

Caitlin Borgmann commented that it is unclear how a ban on D&X but not D&E could be based on the rights or interests of fetuses since, as Justice Ginsburg points out, such a selective ban “saves not a single fetus from destruction.” One of the basic claims of nonconsequentialist moral theory is that it can be permissible to bring about an outcome (such as death) in some ways but not in others. Suppose fetuses have both a general, welfare-based right not to be killed and a specific, dignity-based right not to be killed by methods that possess property X (i.e., some morally relevant property possessed by D&X but not D&E). Both rights can be overridden to protect a woman’s lives, health, or opportunity to participate in public life and realize her individual potential. However, in cases in which D&X and D&E are equally safe the general right will be overridden but the specific right will not be. The difficulty, of course, is to identify property X: a feature of some abortion methods that can be wrong-making but which is not shared by all other methods. As Justice Kennedy notes, “for many, D&E is a procedure itself laden with the power to devalue human life.” Importantly, though, this analysis preserves the need for a health exception to any ban on an abortion method that lacks equally safe alternatives in all cases.

We can imagine a parallel position regarding capital punishment: that individuals have both a general right not to be executed and a specific right not to be executed in cruel or degrading ways; that both rights can be overridden by considerations of deterrence; but that cruel methods may not be used if other methods would have a comparable deterrent effect. Moreover, many who oppose the death penalty argue that there are no methods of execution that are not cruel, degrading, and incompatible with human dignity. However, such a position faces a substantial obstacle that does not exist in the abortion context: while the institution of capital punishment might be justified by the total number of crimes it deters, the application of capital punishment to any particular defendant must, if rights-violating, be justified by the number of crimes deterred by that execution. Absent data regarding the linearity of the deterrence function between executions and crimes the execution of any particular defendant is neither justified nor excused by the reasonable belief that a given execution will deter a sufficient number of crimes to override the right violated. For more on this last point see section II.C of this working paper.